Madras High Court
S.Manickavasagam vs The Commissioner Of Agriculture on 31 March, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.9388 of 2008 and M.P.(MD) No.1 of 2008 S.Manickavasagam ... Petitioner Vs 1.The Commissioner of Agriculture Commissionerate of Agriculture Chepauk, Chennai 600 005. 2.The Joint Director of Agriculture, Theni, Theni District. .. Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus, directing the respondent herein to promote the petitioner to the post of Assistant Director of Agriculture in accordance with the seniority list published by Tamil Nadu Public Service Commission and with effect from the date on which the petitioner's immediate junior got promotion. !For Petitioner ... Mr.S.S.Sundar ^For Respondents ... Mr.R.Manoharan, G.A. :ORDER
The petitioner is working as an Agricultural Officer in the office of the Assistant Director of Agriculture, Illayankudi in Sivagangai District. He was originally appointed through the competitive examination conducted by the Tamil Nadu Public Service Commission. It is stated that while he was working as an Agricultural Officer, he was posted as Agricultural Development Officer in the year 1998 and he was transferred to Theni. It is an admitted position that even though the Agricultural Development Officer post is not a next cadre of promotion from that of the Agricultural Officer, for one to have the promotion as Assistant Director of Agriculture, one has to necessarily work as Agricultural Development Officer for a minimum period of 6 years. It is also not disputed that the petitioner had worked as Agricultural Development Officer in various places for a period of more than 6 years and therefore, his eligibility in the next cadre of promotion to the post of Assistant Director of Agriculture is not in question. It is also seen that there were surplus posts of Agricultural Development Officer in Theni, he was subsequently transferred to Chinnamanur and in that way he has completed his service as Agricultural Development Officer for more than 6 years, which is a conditional criteria and requirement for the promotion in the post of Assistant Director of Agriculture. It appears that when the petitioner was directed to join at Chinnamanur from Theni in the post of Agricultural Development Officer, since there were surplus posts in Theni, the order was not obeyed by the petitioner and hence on the basis of that, certain charge memo is stated to have been issued against the petitioner on 21.09.2006 for his disobedience under Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules.
2. It is stated that in respect of the said charge, the petitioner has submitted his explanation and after the appointment of Enquiry Officer, the Enquiry came to be completed in the year 2006 itself and the Enquiry Officer has also submitted his report to the respondents. But, the respondents have not passed any orders in these long period of 4 years.
3. In the meantime, the crucial date for the promotion to the post of Assistant Director of Agriculture in the year 2008 was on 12.01.2008, even though the petitioner's name was included in the panel, he was not given promotion, on the ground of the pendency of the charge memo under Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules. Under these circumstances, this writ petition has been filed for direction against the respondents to promote the petitioner to the post of Assistant Director of Agriculture in accordance with the seniority list published by the Tamil Nadu Public Service Commission.
4. The counter affidavit has been filed on behalf of the second respondent.
5. In the counter affidavit, it is stated by the second respondent that in respect of the petitioner, there was an earlier charge framed against the petitioner under Rule 17(a) of Tamil Nadu Civil Service (Discipline and Appeal) Rules and he has not submitted his explanation and ultimately a penalty of stoppage of increment for 2 years without cumulative effect came to be passed in the year 2005. Since the period of punishment was over in the year 2007 and the crucial date for the promotion to the post of Assistant Director of Agriculture is on 01.01.2008, the petitioner's name was included in the panel.
6. It is also submitted in the counter affidavit that the petitioner had worked for 7 years as Agricultural Development Officer, which is a conditional criteria for a person to have the next promotion to the Post of Assistant Director of Agriculture. It is also stated that the subsequent charge under Rule Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules has also been framed against him as per charge memo dated 21.09.2006, for the reason that the petitioner has not obeyed the order of transfer and that would amount to non maintaining the official decorum, discipline and non up-keeping the obedience.
7. It is stated that the order of transfer from Theni to Chinnamanur, which was the basis for charge memo dated 21.09.2006 came to be withdrawn by the Joint Director of Agriculture and therefore, according to the respondents, there is no vindictive attitude on the part of the respondent. While it is admitted that in respect of the charge memo dated 21.09.2006, enquiry has been completed and further order has not been passed.
8. It is true that on the ground that the disciplinary proceeding is pending for an unexplained delay, the charge memo dated 21.09.2006 has not been challenged by the petitioner as on date. It is also an admitted fact that as per the said charge memo dated 21.09.2006, the enquiry has also been completed in the year 2006 itself and no order has been passed by the respondent, which has to be construed that there has been an inordinate delay in not passing the final orders.
9. In cases, where, there are unexplained delay in either framing charges or in proceedings with the disciplinary proceedings, the Courts have been interfering on the ground that the unexplained and inordinate delay would be detrimental to the interest of the petitioner for the reason that the petitioner may not be in a position to give proper explanation after the long lapse of time that being the basis for the principle of natural justice.
10. In the case in P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board reported in 2005(4) CTC 403, wherein in respect of an act alleged to have been committed in 1990, charge memo was issued in 2000, after a lapse of 10 years and therefore, the Supreme Court came down against the attitude of the Housing Board and held that such delay caused not only prejudice to the government employee but also that the punishment suffered by the government employee by such delay would be much more than the punishment and such protracted disciplinary action should be avoided not only in the interest of the Government employee, but also in the public interest, for inspiring confidence in the minds of the Government employees. The portion of the judgment is as follows:
"Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994- 1995. The explanation offered for the delay in finalising the audit report cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act
17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr.R.Venkataramani, learned senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board can not be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merits and force. The stand now taken by the respondent in this court in the court affidavit is not convincing and is only an afterthought to give some explanation for the delay."
11. Following the said dictum laid down by the Supreme Court, in a case in Tamil Nadu Water Supply and Drainage Board, rep. by its Managing Director, Chennai and Another Vs. A.Abdul Wahab reported in (2009) 5 MLJ 1101, where I had an occasion to consider such issue as to the consequential damage caused to the Government Servant in case of belated framing of charges including the judgment of Apex Court in State of Madhya Pradesh V. Bani Singh and another, (1990 Supp. SCC 738) and in State of A.P. V. N.Radhakrishnan (1998(4) SCC 154, wherein it has held that in the absence of any explanation for the delay, the charge of irregularity is liable to be set aside, The relevant paragraph No.14 is as follows:
" Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and dispute integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
In the case in Ranajeet Singh Vs. State of Haryana & Others reported in 2008(3) CTC 781, the Apex Court has held that the serious prejudice would be caused to the employee, if there is a long delay in taking or initiating disciplinary proceedings. The relevant paragraph No.8 is as follows:
"We find that the Trial Court decreed the Suit primarily for three reasons: (a) There was an unexplained delay of nine years in issuing the charge- sheet; (b) There was an unexplained delay of seven years in issuing show cause notice after the enquiry report was submitted in January 1985; (c) The appellant was promoted thrice between the dates of alleged misconduct and imposition of punishment (which was about nineteen years). This Court has repeatedly held that inordinate delay in initiating disciplinary proceedings is a ground for quashing the enquiry unless the employer satisfactorily explains the delay. For example, where the matter is referred to CBI for investigation and there is delay in getting its report or where the charge is of misappropriation and the facts leading to misappropriation come to light belatedly, it can be said that the delay is not fatal. But where the alleged misconduct was known and there was no investigation pending and when no explanation is forthcoming in regard to the delay, necessarily the unexplained delay would cause serious prejudice to the employee and therefore, enquiry will have to be quashed.
12. Therefore, it is clear that in cases, where there are inordinate unexplained delay in disciplinary proceedings against the government servant, the Court is entitled to interfere. In the present case, it is clear that the enquiry having been completed in 2006 itself, but the respondents have taken 4 years for the purpose of giving a decision, especially even after the enquiry officer's report has been received. It is also not in dispute that the enquiry report which received as early as in 2006 has not been served on the petitioner, which itself is sufficient to conclude the gross injustice that has been caused to the government servant as that of the petitioner herein. There is absolutely no difficulty to conclude that the pendency of the proceedings even though the same has been completed as early as 2006, is only to scuttle the right of the petitioner to have promotion to the next post as Assistant Director of Agriculture.
13. In the case in State of Punjab V. Chaman Lal Goyal reported in (1995)2 SCC 570, the Supreme Court has held that even in cases of delay, if the court comes to a conclusion that charge memo need not be quashed, the delinquent officer should have been directed to be considered for promotion, if he is otherwise found fit and there could be a direction to give promotions subject to the result of the departmental enquiry.
14. Applying the dictum laid down by the Supreme Court, to the facts of the present case, there is absolutely no difficulty to conclude that the petitioner's case should be considered if he is otherwise fir for the promotion to the post of Assistant Director of Agriculture.
15.In these circumstances, giving opportunity to the respondents to pass final orders in the disciplinary proceedings initiated as per the charge memo dated 21.09.2006, the second respondent is directed to include the name of the petitioner and to consider the case of the petitioner for promotion to the post of Assistant Director of Agriculture based on the panel which was prepared in the year 2008 in which the petitioner's name was included and pass final orders promoting him, if there are no other legal impediments, however subject to the final decision which may be taken by the disciplinary authority. Such order shall be passed by the second respondent within a period of four weeks from the date of receipt of a copy of this order.
16.This writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
arul To
1.The Commissioner of Agriculture Commissionerate of Agriculture Chepauk, Chennai 600 005.
2.The Joint Director of Agriculture, Theni, Theni District.